Special Ground of Divorce for Muslim women under Muslim law and under the Dissolution of Muslim Marriages Act, 1939

 Q. 4 (a) State the grounds on which a wife married under the Muslim Law can obtain a decree for the dissolution of her marriage under old Muslim law?

(b) State the grounds on which a wife married under the Muslim Law can obtain a decree for the dissolution of her marriage under the Dissolution of Muslim Marriages Act, 1939.

OR

Who can sue for dissolution of marriage under the provisions of the Dissolution of Muslim Marriages Act, 1939 ? On what grounds can a marriage be dissolved under this Act?

OR.

Under what provisions of law can Muslim marriage be dissolved by the Courts of India and on what grounds?

 

Ans. Divorce By the wife

 Grounds of dissolution of marriage recognised by Mohammedan Law. The wife can claim judicial dissolution on any other ground which is recognised as valid for the dissolution of marriages under Muslim Law [Section 2 (ix)]. [This clause covers the divorce by Ila, Zihar, Khula, Mubarat, Lian (lian means false accusation of adultery) and Tawfeez].

lla

According to Mulla, Divorce by ila is a species of constructive divorce which is effected by abstinence from sexual intercourse for a period of not less then four months pursuant to a vow.  According to Shafei law, the fulfillment of such a vow does not per se operate as a divorce, but gives the wife the right to demand a judicial divorce.

Thus, where a husband who has attained puberty and is of sound mind, swears by God that he will not have sexual intercourse with his wife for a period of four months or more, he is said to make ila, and its effect will be that of a single irrevocable talak.

 

If the husband was to say to his wife, "I swear by God that I shall not approach thee", it is a valid ila.

 

1. The husband must be of a sound mind and must have attained puberty, 2. He must swear by God or take a vow,

 

3. That he will not have sexual intercourse with his wife for four months or more. According to the Shia and Shafei schools, the wife is entitled to apply to court for restitution of conjugal rights and on her doing so, the husband has two alternatives

 

(i) divorce her, or

 

(ii) resume sexual intercourse with her, and on his refusing to do either, the court has the power to dissolve the marriage.

 

Ila may be cancelled by

 

(i) the husband resuming sexual intercourse within the period of four months; or

 

(ii) a verbal retraction thereof.

 

Zihar

 

(1) The husband must be sane and adult.

 

(2) He must compare his wife to his mother or any other female within prohibited degrees.

 

(3) Then, the wife has the right to (a) refuse to have sexual intercourse with him till he has expiated himself by penances prescribed by law such as

 

(i) freeing a slave;

 

(ii) fasting for two months;

(iii) feeding sixty poor persons;

(b) apply to the court for an order requiring him either to perform a penance or to give her a regular divorce.

 

Legal effects of Zihar

 

The declaration zihar does not of itself terminate the marriage-tie, nor is the claim of the wife for the restitution of conjugal rights lost, even if expiation has not been done.

 

The following legal consequences emerge from zihar—

(i)                  Sexual intercourse becomes unlawful

 

(ii)                Husband is rendered liable to expiation by penance

 

(iii)               The wife can claim jadicial divorce or claim restitution of conjugal rights after insisting that husband performs penance

 

Acceding to Mulla, Zihar is a form of inchoate divorce If the husband compares his wife to his mother of any other female within prohibited degrees, the wife has a right to refuse herself to him until he has performed penance. In default of expiation by penance the wife has the right to apply for a jadicial divorce. Cases of zihar are unknown in India and it has been doubted by text book writers whether the wife's right under zihar would be enforced by courts in India. But the law of zihar has now received statutory recognition is section 2 of the Shariat Act, 1937.

 

According to Syed Amir Ali, zihar would become incumbent on the husband only if the comparison or 'assimilation' was intended disrespectfully The Hedaya says, "If he declares that in making the comparison, his intention was only to show respect to his wife then no expiation would be necessary"

 

The Shia law insists on the presence of two witnesses when any injurious assimilation is made to the wife. Muta marriage which admits no other sort of divorce, may be dissolved by zihar.

Divorce By common consent

 

Khula.-Some times, the divorce of a spouse takes place with the mutual consent of both the parties. The word 'khula' literally means 'to take off cloths' and thence to lay down one's authority over a wife'. Prior to Islam, the wife had no right to ask for divorce. Such a right was conferred antes her only through Koranic legislation. It has been written in 'fatava-i-Aalmgiri' that when married parties disagree and they are apprehensive, they cannot observe the bounds prescribed by the 'divine-laws, ie. when the duties imposed on the spouse on account of the conjugal relations cannot be performed, the wife can release herself from the tie of her marriage by giving up some property in return. In consideration of it, the husband has also to give her a khula. This practice is adopted in the case of Talak-ul-bain. This form of divorce has been recognised in section 28 of Special Marriage Act, 1954 (43 of 1954).

 

Essential Conditions of Khula.-The following are the essential conditions for khula:

1. Common consent of the husband and the wife.

2. Some 'return' or consideration (iwaz) from the wife to husband, if she desires to separate her from husband through such divorce.

 

The specialty of divorce by "khula" is that

(a) wife begs from her husband to release her from the tie of marriage,

(b) such request is made for a certain consideration which is usually a part or the whole of the mahr.

 

In Moonshee Bugu-ul-Raheem v. Lutteful-oon-Nissa, (1861) 8 Moo 1A 379, (395), it has, been held by Privy Council that the terms of bargain in khula are a matter of arrangement between the husband and wife and the wife may as the consideration release her dyn-mehr and other rights as make any other agreement for the benefit of the husband. In Pakistan, in the case of Balqis Fatima v. Najim-ul ikram, (1954) 2WP321: 59, Tah 566. it has been held that the wife was entitled to khula as a right on the restoration of what she had received in consideration of marriage if the judge apprehends that the parties will not be able to live amicably together. In Khurshid Bibi v. Mohammad Assim, PLO 1967 SC 97, it has been held by the Supreme Court of Pakistan that under Muslim law, the wife is entitled to khula as a right, if she satisfies the conscience of the court, that it will otherwise mean forcing her into a hateful union.

 

Mubara'at. The term mubara'at denotes "the act of freeing of another mutually". In such a divorce spouses feel happy at the prospect of getting rid of each other. In the divorce of mubara'at, the offer for the dissolution of marriage may proceed from the wife or it may proceed from the husband. However, once it is accepted, the dissolution of marriage is deemed complete and operates as a talak-i-bain.

 

Legal effect of Khula and mubara'at.-The legal affect of khula and mubara'at is that, once it completed, the divorce between a spouse becomes irrevocable. A marital life, thereafter, cannot be resumed. A form called re-marriage is then necessary. If iddat is incumbent on the wife in absence agreement to contrary, she and her children are entitled for maintenance during such period.

Distinction between Khula and Mubarat

 

1. Khula is a "redemption" of the contract of marriage, while Mubarat is a "mutual release" from it.

2. In Khula the offer is made by the wife and its acceptance is made by the husband. In Mubarat any of the two may make an, offer and the other accepts it.

3. In Khula, a "consideration" passes from wife to the husband, in Mubarat the question of consideration does not arise.

4. In Khula, the aversion is on the side of the wife, while in Mubarat there is mutual aversion.

Both Khula and Mubarat require the observance of Iddat. It is the husband who can effect the divorce and it is not possible for Qazi or a Court to give a divorce even by Khula, that is by directing the wife to pay some compensation to the husband in lieu of a decree for divorce in her favour. Husband's consent is essential.

(C) Dissolution by Judicial Process Lian (Mutual Imprecation)

 

Lin is testimony confirmed by oath and accompanied with imprecation Under the pure Mohammedan law, if a man charges his wife with adultery, be may be called upon on the sp of the wile, either to retract the charge or to conform it by oath coupled with an imprecation in these terms: "The curse of God be upon him if he was liar when he cast at her the charge of adultery the wife must then be called upon either to admit the truth of the imputation or to deny it on oath coupled with an imprecation in these words "The wrath of God be upon me if he be a true speaker in the charge of adultery which he has cast upon me If she takes the oath, the Kazi must believe her, and pronounce a separation between the parties. The husband had to be given every opportunity to retract the charge as the offence of making a tale accusation of adultery was severely punishable but now there is no obligation on the courts in India to give the husband an opportunity to retract the charge

 

Features of Lian

 

1. The husband (adult and sane) charges his wife (adult and sane) of adultery or denies the paternity of her child

 

2. Such charge or denial is false. If the charge of adultery is proved to be true, the wife's suit for divorce fails.

3. Such false charge does not ipo facto dissolve the marriage. It only gives an opportunity to the wife to move the court to dissolve the marriage. The marriage continues till the decree of dissolution is passed. 4. She must file a regular suit for the dissolution of marriage Mere application is not enough

No such suit will lie if the marriage was irregular.

5. The separation due to lian is irrevocable.

 

Retraction of charge.-The Muslim law permits the man to retract the charge Social conscience views with extreme disapprobation any attempt to break up a home and the principle of retraction gives the husband a locus poenitentiaet before the marriage is dissolved Its object is to establish a cardinal relationship between husband and wife.

 

The retraction must be (1) bona fide and not a mere device for defeating suit for dissolution,

 (ii) must be unconditional and must be made at or before the commencement of the hearing and not after the close of evidence.

 

In A.M. Jagjakh v. Rajathi Ziaudeen, [1 (2007) D.M.C. 365], the parties were living separately for about 12 years. The Court held that there was an irretrievable breakdown of marriage, and therefore the Court granted divorce.

 

Talak-e-tafwid (Delegated divorce)

 

The power to give a divorce is vested in the husband in Muslim law. However, a husband can delegate such power to his wife or to a third party either absolutely or conditionally. Such talaq may be for a particular period or permanently. It is called "delegation of power to divorce" (talak-e-tefwid or Tafweez)

 

In this system, person so authorised by a Muslim husband may pronounce the talak (divorce) accordingly. In case the power of delegation was temporary, it is irrevocable, but if it is permanent it may be revoked.

 

As per Bailee, a husband may

 

(a) in person repudiate his wife, or

(b) delegate the power of repudiation to third party, even to own wife. The example of such type of divorce is that when a man has said to his wife, "choose thyself today" or "this month" or "an year", she may exercise the option at any time within the given period. Shiaties also follow this practice

 

This form of delegated divorce is perhaps the most potent weapon in the hands of a Muslim wife to obtain her freedom without the intervention of any court and is now beginning to be fairly common in India. The authority to pronounce divorce upon herself may be given bythe husband under an agreement made either at the time of the marriage or any time after it. An agreement that under certain specified conditions, the wife can pronounce divorce upon herself is valid, provided

 

(1)    that the option is not unconditional and absolute,

(2)    and the conditions are reasonable and not opposed to public policy.

 

If the rights of pronouncing divorce has been delegated to the wife, she may exercise it if the husband fails to fulfil the stipulated condition or upon the happening of the stipulated event.

 

Grounds of dissolution of marriage under the Dissolution of Muslim Marriages Act, 1939.-

A Muslim marriage may be dissolved by the Courts of India under the provision of Section 2 of the Dissolution of Muslim Marriages Act, 1939. Before the passing of this Act only two grounds, namely

 

(i) Impotency of husband, and

(ii) Lian,

were generally recognized in British India as valid grounds of dissolution of marriage by a judicial decree. Under the present Act of 1939, further grounds have been provided under which a wife married under the Muslim Law can obtain a decree for the dissolution of her marriage. The grounds provided under Section 2 of the Dissolution of Muslim Marriages Act, 1939 are the following:

1. Long absence of husband.-If the whereabouts of her husband have not been known for a period of four years the wife is entitled to a decree for dissolution of her marriage. [Clause (1) of Section 2]. But if the husband appears within a period of six months after the passing of such decree and satisfies the court that he is prepared to perform his conjugal duties, the court must set aside the said decree.

 

2. Failure to maintain her.-If the husband has neglected or has failed to maintain her for a period of two years, the wife is entitled to a decree for the dissolution of her marriage. [Section 2 w (ii)]

The husband cannot defend the suit merely on the ground that he was unable to maintain her due to poverty, failing health, unemployment, imprisonment or on any other grounds, such as, personal properties of his wife, unless it is shown that her conduct has been such, as to disentitle her to maintenance under Muslim Law.

 In Smt. Rabia Khatoon v. Mohammad Mukhtar Ahmed [AIR 1966 All 5481, it was held that if maintenance is not provided by the husband on account of the wife's wrongful refusal to live with him, he cannot be considered guilty of negligence in maintaining her.

In Said Ahmad v. Sultan Bibi [AIR 1943 Pesh 73], it was observed that no distinction was made between a poor wife or a rich wife where the obligation of maintenance is concerned. A rich wife may claim maintenance on proper grounds and also claim a decree on this ground provided her own conduct does not fail her.

3. Imprisonment of husband.-If the husband has been sentenced to imprisonment for a period of seven years or upwards, the wife is entitled to a decree for the dissolution of her marriage [Section 2 (iii)], but no decree can be passed on this ground unless the sentence has become final. [Proviso (a) (Section 2)].

4. Failure to perform marital obligations.-If the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years the wife is entitled to a decree for the dissolution of marriage under clause (iv) of Section 2.

5. Impotence of husband.-The wife is entitled to obtain a decree for the dissolution of her marriage on the ground that the husband was impotent at the time of marriage and continues to be so till the institution of the suit. [Section 2 (v)].

6. Insanity, leprosy or venereal disease.-If the husband has been insane for a period of two years or is suffering from leprosy or from virulent venereal disease, the wife is entitled to dissolution of her marriage. [Section 2 (vi)].

7. Option of Puberty.-

'Option of Puberty'. (Khyar-ul-bulugh).

Meaning and Nature.-"Option of puberty is the right of a minor boy or girl, whose marriage has been contracted through a guardian, to repudiate or confirm the marriage on attaining puberty." Under certain circumstances, a minor Muslim girl (or boy) contracted in marriage by the guardian for marriage has the option of repudiating the marriage on attaining puberty. This is known as the option of puberty. The marriage is valid until repudiation.

In Abdul Karim v. Amina Bai, (1935), the Bombay High Court held that the option of repudiation given to the wife is based on principles repeatedly emphasized in the Quran. It is one of the safeguards by which Islam alleviates the incidence of pre-Islamic institutions pressing harshly against women and children.

For the sake of convenience and better understanding we may divide a man's life into three stages:

 

1. Saghir i.e., the first stage when the boy or the girl is below seven years of age. In this stage, the marriage is void ab initio. The question of his consent or his opinion does not arise. In no circumstances can marriage in this stage be recognized. A person below this age cannot himself or herself contract a marriage nor his or her marriage can be contracted by his or her marriage guardians.

 

2. Sarir, i.e., the second stage when his or her age is above seven years but below 15 years. In this stage, though he can be married, his consent for marriage is not recognised and has no validity. In this stage, he can be validly married by his marriage guardians. He cannot marry on his own free consent without the intervention of a guardian.

 

3. Bulugh i.e., the third stage when he or she is above 15 years of age and becomes major. It is now when he or she can enter into a contract for marriage on his or her own free consent.

 

If he or she has been married by his or her guardian in the second stage, he or she now acquires right either to ratify or to repudiate the marriage contracted by his or her guardians. Thus, we see that the right of option originates in the second stage but is availed in the stage when such a person attains the age of fifteen years.

 

Old Law on Option of Puberty.- If the minor had been married by the father or grandfather, the marriage was regarded to be valid and binding on the minor who could annul it on the attainment of puberty except in very special circumstances

Grounds of the option to repudiate.-In the case of marriage of a minor contracted by the father or grandfather, it could not be repudiated except

1. when the father or grandfather acted negligently or wickedly, or

2. when the marriage was to the manifest disadvantage of the minor.

 

The marriage of a minor may be contracted by his or her father or father's father. Marriage of a minor contracted by persons other than the father or father's father is ineffective under Shia Law, unless it is ratified by such minor on attaining puberty.

Illustration. A Shia girl, who was a minor, was married to grossly a Sunni by her father and on her attaining puberty, she considered the marriage repugnant to her religious feelings and disadvantageous to herself. It was held that she must be allowed the option to repudiate it. [Aziz Bano v. Mohammad, 47  All. 832].

 

In case of marriage through other guardians (and not through the father or father's father) the minor might, on attaining puberty, repudiate it without giving any ground or he or she may ratify it.

 

Under Shia Law a marriage contracted by persons other than  father or grandfather is not recognized and such a person is termed as Fazuli for this purpose.

 

Time of Option

 

By the female.-1. In case she was aware of the marriage she was to exercise this right immediately on attaining puberty. Any unreasonable delay would deprive her right of option.

2. Among the Sunnis, if the girl had no knowledge of her marriage she retained her right:

(a) Until she became aware of the marriage.

(b) Until she was acquainted with fact that she had the right to repudiate the marriage.

(c) And she could exercise that right within a reasonable time thereafter. (Bismillah v. Nur Mohammad, 44 All. 61). The essential principle worthy of consideration was that the woman should exercise her option immediately on attaining puberty and seeing the signs thereof, and any sort of delay was to be avoided because of the husband's right of cohabitation.,

3. The option was lost if she, after having attained puberty permitted the marriage to be consummated with her free consent.

 

By the male. A male retained the option until he had ratified the contract by:

(i) Express declaration;

(ii) Payment of dower;

(iii) Cohabitation.

Present Law regarding the option of Puberty-Dissolution of Muslim Marriage Act, 1939.-This Act has considerably modified the old law of the Option of Puberty. Prior to this, the marriage contracted by the father or grandfather could not be repudiated by the minor on attaining Puberty except in very special circumstances. But now this law has been superseded by Section 2 Clause VII of the above Act of 1939.

Section 2, Clause VII reads thus: 'A woman married under Muslim Law shall be entitled to obtain a decree for divorce on the g ground that she, having been given in marriage by her father or other guardians before she attained the age of fifteen years repudiated the marriage before attaining the age of eighteen years, provided that the marriage has not been consummated."

 

 

The Dissolution of Muslim Marriages Act, 1939 applies only to a woman married under the Muslim Law, and it does not apply in the case of a Muslim man. Therefore, the old law of Khyar-ul-bulugh (option of Puberty) applies in the case of a Muslim male married during his minority.

 

An analysis of the above clause will clearly explain that all the restrictions on the option of puberty in the case of a minor Muslim girl whose marriage has been arranged by the father or  grandfather have been abolished, provided that three conditions are satisfied, namely:

 

1. The marriage took place while she was below the age of fifteen years.

2. She repudiated the marriage before attaining the age of 18 years.

3. The marriage has not been consummated.

Effects of the Dissolution of Muslim Marriage Act, 1939

1. It is no more necessary for a woman married under the Muslim Law to show, as in the old law that the father or grandfather has acted negligently or wickedly.

 

2. It is no more necessary to show that the marriage is to her manifest disadvantage.

 3. It is no more necessary that she should exercise her right of option immediately on attaining puberty without unreasonable delay.

4. The marriage contracted by the father or other guardians would be valid and binding till the Court decrees the divorce on the ground laid down in Section 2 (vii).

5. A regular suit has to be filed for the exercise of the option of repudiation and a decree is essential.

7. She must repudiate the marriage before attaining the age c eighteen years.

6. The girl would not lose her right to option if the marriage is consummated before she attains the age of fifteen years. But if the marriage is consummated with her free consent after she attains the age of fifteen years, this option is lost.

8. Cruelty. If the husband treats her with cruelty the wife may obtain a decree for the dissolution of her marriage. For example, if he has more wives than one, and does not treat her equally in accordance with the injunctions of Quran. [Section 2 (viii)]

  In Mustafa Begum v. Mirza Kazim Pazza Khan, (1932) 8 Lucknow 204, it has been held by the court that cruelty is considered as sufficient ground for dissolving the marriage on the suit of the wife but mere incompatibility of temperament was not regarded as good ground. The word 'cruelty' means and includes the following

 

(a) when a husband habitually assaults his wife or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment; or

 

(b) when a husband associates with a woman of evil repute or leads an infamous life, or

 

(c) when a husband attempts to force his wife to lead an immoral life; or

 

(1) when a husband keeps more than one wife and does not treat her equitably as per Quaranic injunctions.

 

(d) when a husband disposes of her property or prevents her from exercising her legal right over it, or (e) when a husband obstructs his wife in the observance of her religious profession or practice, or

(e) when a husband obstructs his wife in the observance of her religious profession or practice; or

(f) when a husband keeps more than one wife and does not treat her equitably as per Quaranic injunctions.

In Moonshi Buzloor Raheem v. Shumsoonissa Begum, (1867) 11 MIA 551, it has been held by Privy Council that "the cruelty should be of a type that endangers life." The observation of Privy Council however, has no application in this view of the Act. Now, the question is what actually includes 'cruelty by conduct. In reply to this question, it was said in the case of Begum Zohra v. Mahmmod Ishfaq ul-Majid, (55) Sindh 378, that cruelty by conduct includes habitual use of abusive and insulting language to the wife.

 

 

References

 

Muslim Law in India—Tahir Mahmood

Family law S.R Myneni`s

 

: https://www.thedailystar.net/law/2004/01/01/queries.htm

https://blog.ipleaders.in/essentials-of-valid-marriage-under-muslim-law/